The Recognition On Legal Nature Of Blocking Pre-rolls Behavior

With the rapid development of Internet technology,especially under the use of big data and cloud computing,the Internet industry has made a huge progress.The Internet enterprises need to catch up with the pace of times to innovate business model using new technology in order to appeal more Internet users.At the beginning,the video websites provide free videos to users.After having acquired a number of users,they start to expand their business on advertisement market and put more pre-rolls in every video aiming to get profits.Loads of pre-rolls are time-consuming,having vulgar content and disturbing.These really affect the viewing experience of users.At this time,some software developers have developed a kind of software which can block pre-rolls and improve the viewing experience.This behavior can appeal more users concentrating on the blocking software and then increase the competitive advantage of software developers.The consumer benefit is involved in this blocking behavior.So when we apply Anti-Unfair Competition Law to analyze the legal nature of blocking behavior,we should accord with the purpose of law.This thesis follows the thinking mode of putting forward questions——analyzing questions——drawing the conclusion.Firstly,it conducts a general interpretation of blocking pre-rolls.Then it summarizes the theories and problems of legal nature.Secondly,it analyzes the legal nature of this behavior from four aspects which are the subject,object,subjective aspects and objective aspects.At last,it draws the conclusion according to the analysis above.In addition to the introduction,the thesis includes four sections:Part I: A general introduction to the behavior of blocking pre-rolls.Firstly,it mainly introduces the concept of pre-rolls in China and summarizes the features of pre-rolls.Secondly,it defines the blocking behavior,divided into the broad and the narrow behavior.This thesis mainly studies the narrow blocking behavior.Then it specifies the process on how to implement this behavior and introduces the technical carriers and means.Currently in Internet market,this behavior is usually implemented by the third-party software,plug-ins and extensions.Some software change the ads parameter during operation and make the pre-rolls fail to play before users watching videos.Some software allow users speeding the ads when playing in order to save viewing time.By clarifying the behavior,it summarizes the features of this blocking behavior.Part II: Argumentation on legal nature of blocking pre-rolls behavior.Generally,it has three different theories on legal nature of blocking behavior.They are illegality,legality and pending status.The illegality theory thinks that the blocking behavior infringes the copyright and damages the legal interest of video websites.The legality theory thinks that the blocking behavior is legal because the law doesn't prohibit this behavior and lack the legal elements.Therefore,it should be presumed the blocking behavior is legal.Scholars who hold the views that the blocking behavior should be in pending status think that the matter of blocking behavior is in fact a kind of technical problem and it should be solved by Internet market not by court.Part III: The dilemma in practice of legal nature on blocking pre-rolls behavior.This part mainly studies the predicaments and problems of blocking behavior in practice,specifically divided into legislative difficulties and judicial difficulties.In legislative aspect,though the revised Anti-Unfair Competition Law has added Internet unfair competition provisions,we cannot directly apply this provision because of abstraction.Therefore,we should again apply the Art.II to analyze the legal nature of this behavior.In judicial aspect,the judge didn't use the mode of competition law but general infringement mode.This has caused the problems of over-protecting the plaintiff's legal interest and over-stressing the defendant's subjective state.Most importantly,the judge ignored the consideration of the concept of competition.There exists a tendency of pan-moralization when identifying the legitimacy of blocking behavior.The judge didn't explain the business ethics from the perspective of dynamic competition but over-stressed on the static competition among operators without disturbing each other.Part IV: Suggestions on specific identification of legal nature on blocking pre-rolls behavior.This part analyzes the behavior mainly from four aspects which are the subject,object,subjective aspects and objective aspects.According to the subject,identifying the amateurs of network don't belong to the operator in Anti-Unfair Competition Law.It adopts a broad sense of competitive relationship and believes blocking software and video websites are in a competitive relationship.According to the object,the blocking behavior doesn't damage the legitimate rights and interest of video websites.The blocking behavior conforms to the competition rules and doesn't break the competition order.Most importantly,this blocking behavior is beneficial to both consumers and the public.According to the subjective aspect,there is no need to identify the subjective state of actors.Instead,we should pay more attention to the competition behaviors.According to the objective aspects,pre-rolls constitute malicious advertisements.The blocking behavior doesn't breach the Internet business ethics.There is no situation for software operators to induce,mislead and cheat Internet users.Therefore,the blocking behavior conforms to the principle of good faith.The development behaviors also conform to the principle of technology neutrality.According to the analysis above,it draws the conclusion that the blocking pre-rolls is a kind of legitimate competitive behavior.